Duty to Accommodate: A General Process For Managers

Table of Contents

Introduction

Canadian law prohibits discrimination based on any of the eleven grounds identified in section 2 of the Canadian Human Rights Act (CHRA) and employers have a duty to accommodate employees to avoid such discrimination. Employers must accommodate employees who fall into the groups protected by the CHRA up to the point of undue hardship, taking into account health, safety and cost.See footnote [1]

To demonstrate that the duty to accommodate has been fulfilled, the employer must be able to document the process that was observed in considering and acting on the employee's request for accommodation. This document has been prepared to provide a general process to follow when assessing an accommodation request.

This document does not constitute legal advice, but is intended for use as a decision-making model to help departments and managers meet their duty to accommodate while acknowledging that accommodation is always decided on a case-by-case basis.

The document also describes the roles and responsibilities of key players in the accommodation process, such as managers, functional specialists (e.g., facilities, information technology, human resources/labour relations, occupational safety and health, compensation, legal services, Employee Assistance Program (EAP)), the employee representative, and the employee requesting the accommodation.

Eleven Prohibited Grounds of Discrimination

When you receive a request for accommodation or perceive a need, your first step is to determine whether the request falls under one or more of the following 11 grounds of discrimination that are prohibited under the Canadian Human Rights Act:

The duty to accommodate is most often applied to situations involving disabilities, but it also applies to the other grounds, such as family status.

The duty to accommodate is not about employee preferences; it is about removing discriminatory barriers related to the 11 prohibited grounds of discrimination, up to the point of undue hardship to the employer.

The following are common situations that could trigger the need for accommodation:

Performance and the Duty to Accommodate

Performance problems can sometimes tell you that there may be a need to accommodate, even when the employee has not asked for an accommodation. As a manager, you are obligated in certain circumstances to initiate action to determine if an accommodation is needed, even if the employee has not asked for it.See footnote [2] You are encouraged to consult with your organization's human resources/labour relations functional specialists for guidance. The following are some examples of signs that might require further investigation to assess whether accommodation is needed:

If you have spoken to the employee about specific behaviours and offered the option of accommodation on several occasions, and the individual does not wish to pursue the matter, remember to document the steps you took to show that you did everything you could to help the employee and that you fulfilled your obligations regarding the duty to accommodate. Be sure to advise the employee of available services, such as EAP.

Example

You notice that a previously reliable employee is missing deadlines. On speaking with the employee, you have reason to suspect that stress or a mental health problem might be the cause. You suggest that the employee seek professional help and make sure he or she knows how to use your organization's EAP. Tell the employee that you can make adjustments to his or her schedule to accommodate any treatment that might be required. Make sure the employee understands that once he or she receives treatment, the health care provider can help by suggesting changes at work to enable the employee to better manage his or her workload. With the employee's consent, you obtain this information from the treating physician or counsellor, who recommends giving the employee more uninterrupted time at work so he or she can meet deadlines. You make this adjustment and you meet regularly with the employee to ensure that the accommodation is working.

Supporting Documentation: Medical and Other

As a manager, you are responsible for respecting the individual's right to privacy and confidentiality while fulfilling your obligations regarding the duty to accommodate. You will need to know when it is appropriate to ask for supporting information or documentation. You are encouraged to consult with your organization's human resources/labour relations functional specialists for guidance.

Employees may be reluctant to share any information or ask for accommodations for reasons such as the following:

However, the employer is entitled to receive sufficient information to provide effective accommodation. Such information may include details on functional limitations. This kind of information is not usually required for employees who have readily evident disabilities such as permanent physical disabilities resulting from paraplegia or quadriplegia, or permanent sensory disabilities (e.g., visual or hearing impairment). When an employee's functional limitations are not readily apparent, you will need to obtain a thorough assessment of the disability. Examples include the following:

For requests related to religious practices, you should not generally need supporting documentation. However, if you are unfamiliar with the religion or the specific religious practice, it may be appropriate to request additional information from the employee or a designated official within the employee's religious community. Again, the information you seek should focus on the needs pertaining to the accommodation rather than on personal information about the employee.

In general, keep the following in mind:

Limits on the Duty to Accommodate

Accommodation requires a balance between the rights of an employee or candidate and the right of an employer to operate a productive workplace.

Duty to accommodate, however, is not limitless. As a manager, you are not required to do the following:

How do you determine undue hardship?

Employers are required to provide accommodation up to the point of undue hardship. There is no set formula for deciding what constitutes undue hardship. To help determine undue hardship, consider health, safety, cost, collective agreements, the interchangeability of the workforce and facilities, and the legitimate operational requirements of the workplace. You should make serious, conscientious and genuine best efforts, document your efforts, and include input from the employee and the employee representative, where applicable, as well as from your organization's human resources/labour relations functional specialists

It is not enough to offer assumptions or impressions about what is or is not possible. For example, simply declaring that the cost is too high or that there is an unreasonable risk to health and safety does not constitute undue hardship. To prove undue hardship, you must provide substantial evidence and document it.

What is a bona fide occupational requirement?

The law recognizes that a limitation on individual rights may be reasonable and justifiable in employment situations.

For example, individuals employed as truck drivers must meet vision standards and have an appropriate driver's licence. If an employer can show that there are specific requirements that every individual performing a specific job must meet because they are essential to the effective and safe performance of the job, then no duty to accommodate arises because this does not constitute discrimination.

How do you establish a bona fide occupational requirement?

The Supreme Court of Canada established a three-step process (Meiorin and Grismer cases, both in 1999):

  1. The rule or standard adopted must be connected to the functions of the position.
  2. The rule or standard is adopted in good faith on the grounds that it is necessary.
  3. The rule or standard is reasonably necessary to accomplish the purpose or goal, in the sense that the employer cannot accommodate individuals who possess the characteristics of a particular group without incurring undue hardship.

Employee and CandidateSee footnote [3] Responsibilities

Successful accommodation requires the collaboration of multiple parties, including the employee or candidate, the manager, the employee representative, functional specialists and co-workers.

The employee or candidate is expected to do the following:

Where Can I Go for Help?

Consult the following resources for more information on the duty to accommodate:

Duty to Accommodate: A General Process for Managers

A Tool to Support Excellence in People Management and Organizational Effectiveness

Step 1: Recognize the Need for Accommodation

The duty to accommodate is not about employee preferences; it is about removing discriminatory barriers that are prohibited by the Canadian Human Rights Act.

See "Eleven Prohibited Grounds of Discrimination" and "Performance and the Duty to Accommodate"

Step 2: Gather Relevant Information and Assess Needs

All accommodation documents must be kept confidential and separate from all human resources files.

See "Supporting Documentation – Medical and Other"

Step 3: Make an Informed Decision

Each person has unique needs. Work in partnership with the individual to find a solution.

See "Limits to the Duty to Accommodate", "Employee and Candidate Responsibilities" and "Where Can I Go for Help?"

Step 4: Implement the Decision

Accommodation is about removing barriers to enable an employee to perform and contribute fully to the organization.

Step 5: Follow Up and Keep Records

You should respect the dignity and privacy of the person being accommodated. Communicate only what you need to those who need to know.

Accommodation is made on a case-by-case basis, and the process should be as uncomplicated as possible. The process should respect the dignity and privacy of the person being accommodated and must be provided on a timely basis.

Successful accommodation requires collaboration from all parties, including the employee, the employer, the employee representative, functional specialists and co-workers.

There is no set formula for accommodation. Each person has unique needs, and all employees have the right to be accommodated up to the point of undue hardship for the employer, based on prohibited grounds (see "Eleven Prohibited Grounds of Discrimination"). Accommodation is about removing barriers to enable an employee to perform and contribute his or her skills fully to the organization.


Return to footnote reference [1] Canadian Human Rights Act (Section 2 and Section 15(2)). For more information on the law and cases relating to the duty to accommodate, see the Canadian Human Rights Commission.

Return to footnote reference [2] Mager vs. Louisiana-Pacific Canada Ltd., unreported, British Columbia Human Rights Commission, June 29, 1998.

Return to footnote reference [3] The term "candidate" includes applicants from outside the federal public service and employees who are participating in the staffing process.

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